Thursday, August 27, 2015
It's that time of the semester when we invite folks to publicize land use-related events at their law schools (or other professional schools holding land use law-related events). Feel free to send your events to me, or to any of the other editors, and we'll get your good work out there.
Wednesday, August 26, 2015
Helen Kang has been a wonderful mentor to me, and so I like to celebrate her victories. Helen is the Director of the Golden Gate University Environmental Law & Justice Clinic and this week she shared this news:
The Stanford Environmental Clinic, as lead counsel, and the Golden Gate University School of Law’s Environmental Law and Justice Clinic, representing a diverse group of clients, won a challenge to California’s deficient regulation of water pollution from irrigated growing operations in one of the largest farming regions in the state – the Central Coast region. The state court’s 44-page decision affects 435,000 acres of farmland. This victory couldn’t have been achieved without the excellent work of our wonderful clients (including Pacific Coast Federation of Fishermen’s Ass’n; Environmental Justice Coalition for Water; Ms. Manzo who has not been able to use tap water because it is polluted; Monterey Coastkeeper; and Santa Barbara Channel Keeper); our co-counsel California Rural Legal Assistance; the staff attorneys at our two clinics, in particular Matt Sanders, Alicia Thesing, and Drew Graf; the many students who wrote briefs; and the two Stanford 3Ls and the Golden Gate graduate fellow (since the hearing was held in May after the Golden Gate students were gone from the clinic).
The case was covered in this article in the Monterey County Weekly. Congratulations to Helen and her colleagues and students.
Jamie Baker Roskie
Tuesday, August 25, 2015
This is my second post as a guest author for the blog. In my precious post I discussed the struggle for and conflict over land in the Negev desert, between the Government of Israel (“GOI”) and the country’s numerous indigenous Bedouin tribal people. (See map below for the Negev’s location. Today I attempt to explain parts of the Israel Land Law of 1969 and other attributes of land provenance and ownership.
I would like to apologize for incorrectly referring to the 1969 land law, as the 1949 land law at the bottom of the third paragraph of the previous post. I request that accept my apologies for missing the correct date. Of course, I hope that the readers were not confused by my error.
Once again, I note that we must take a step into the past, back to 1901 to be exact. However, historical facts do not necessarily provide us with substantive answer. In that year, the Jewish National Fund (“JNF”) was established by the Fifth Jewish Congress meeting in Basel, Switzerland. It was created as a national fund for the purchase and management of in Ottoman controlled Palestine land in what is today Israel, a national fund to purchase land. The JNF has been doing exactly that ever since. Moreover, to its credit the JNF has planted numerous forests across Israel. Nevertheless, although it is an independent entity, its leaders march to the government’s tune. Thus JNF’s decisions are sometimes at odds with what land stewards and environmentalists feel is moral, legal and right.
As a result of the purchase and transfer of properties - by the JNF to the Government of Israel (“GOI”) - and land that Israel received pursuant to the terms of the U.K.’s withdrawal from its Palestine Mandate the GOI - via state or by quasi-state agencies - owns most of the land, 93%, (excluding the occupied areas of the West Bank and Gaza), within the borders of the State. Indeed, Article 1 of Israel’s Basic Law of 1960, prohibits the transfer of land from government agencies via sale or by other means. Article 1 defines “lands” to include “land, houses, buildings and anything permanently fixed to land.”
Accordingly, in order to provide housing stock, the government gave families and businesses a 49-year lease that is renewable upon request for building homes or for buying condominiums, the predominant form of home ownership in the country.
Idaho Law welcomes Lee Fennell for first faculty colloquium in new Idaho Law & Justice Learning Center
The University of Idaho College of Law is excited to welcome Prof. Lee Fennell (Chicago) to Boise this Friday for our first faculty colloquium in the new Idaho Law & Justice Learning Center in Boise. Prof. Fennell will be discussing her draft paper, “The Distributive Deficit in Law and Economics.”
More on Prof. Fennell:
Lee Fennell joined the University of Chicago Law School faculty in 2007, having previously served as a Bigelow Fellow from 1999 to 2001. In the intervening years, she taught at the University of Texas School of Law from 2001 to 2004 and at the University of Illinois College of Law from 2004 to 2007. She has also held visiting positions at Yale Law School, NYU School of Law, and the University of Virginia School of Law. She received her JD magna cum laude from Georgetown University Law Center in 1990. Before teaching law, she practiced at Pettit & Martin, the State and Local Legal Center, and the Virginia School Boards Association.
Her teaching and research interests include property, torts, land use, housing, social welfare law, state and local government law, and public finance. She is the author of The Unbounded Home: Property Values Beyond Property Lines (Yale University Press 2009), as well as many articles and essays.
If you happen to be in Boise on Friday, stop by and join us!
Monday, August 24, 2015
From the Association of Collegiate Schools of Planning (ACSP): You might be interested in the abstract submission window for the upcoming World
Planning Schools Congress in 2016: submission deadline October 5th.
For detailed information about the conference and how to submit an abstract
visit http://www.wpsc2016.com.br/. The conference is in Rio de Janeiro, Brazil, July, 3rd to July 8th, 2016. A little land use law samba, anyone?
Sunday, August 23, 2015
This summer, Hawaii started what is only the second environmental court in the nation. It will be very interesting to watch and see its development. Seemingly, its jurisdiction also includes land use matters.
A video report here.
A release of the Hawaii judiciary:
HONOLULU — On July 1st, Hawaii will take the historic step of establishing the second statewide Environmental Court in the United States. Hawaii’s new Environmental Court will have broad jurisdiction over civil and criminal cases affecting the environment.
According to Supreme Court Chief Justice Mark E. Recktenwald, “The goal of the Environmental Court is to ensure the fair, consistent, and effective resolution of cases involving the environment. We are excited to be part of this new initiative.”
In recent years there has been a dramatic increase in the creation of environmental courts and tribunals around the world. To date, 350 environmental courts of some kind are operating in 41 countries. The Vermont State Legislature founded America’s first environmental court in 1990. No other statewide environmental courts were formed in the United States until former Governor Neil Abercrombie signed into law Act 218, Session Laws of Hawaii 2014.
Pursuant to Act 218, Chief Justice Recktenwald appointed Associate Justice Michael D. Wilson to serve as Chair of the Environmental Court Working Group, an assembly of court personnel from across the state, to manage the implementation of the new specialty court. The Working Group has been preparing for the July 1, 2015 launch, starting with a report to the 2015 Legislature describing plans to implement the Hawaii Environmental Court. Since then, environmental court judges for the district and circuit courts have been assigned, Circuit Court Rules were amended, case management systems were updated, and adjustments were made to some court schedules to accommodate environmental court calendars.
“With the Environmental Court, Hawaii will be better positioned to safeguard one of the most treasured environments in the world,” said Justice Wilson. “By organizing the technical and legal environmental issues under the Environmental Court, the State Legislature’s intention of promoting and protecting Hawaii’s natural environment will be realized through informed, efficient and consistent application of Hawaii’s environmental laws.”
Friday, August 21, 2015
I've been so busy this summer that I haven't had a chance to blog about some major developments on one of my favorite topics: neighborhoods. But now I have some time, so here goes.
I have several recommendations for those interested in neighborhoods. First, Malcolm Gladwell's article in this week's New Yorker, "Starting Over," discusses how social scientists have used the Hurricane Katrina-induced diaspora from New Orleans' poorest neighborhoods to explore the question of whether neighborhood matters. In short, it does. I highly recommend the article.
In addition, Gladwell does a short description of several very important social science articles that have come out this year. Those are both from teams led by Raj Chetty that have dug into HUD Moving to Opportunity data. As many of you know, MTO was a massive, multi-decade study that used different variables to explore whether removing people from the poorest neighborhoods to those with less poverty would affect their life choices and life outcomes. The initial results from the MTO study were surprisingly lackluster.
But Chetty and his team revisited the data and found what the initial investigation of the data had not: where poor kids grew up had a huge effect on how much money they earned as adults. In other words, while the results of MTO did not show a tremendous change in the lives of adults that were moved to new neighborhoods, the kids of those adults that moved to those new neighborhoods saw profound life changes.
In one of Chetty's studies, he investigated those families living in public housing in the MTO program that were randomly selected to be eligible for housing vouchers that required them to move to less-concentrated poverty neighborhoods. Children whose families received the special MTO vouchers grew up to earn significantly more than those whose families remained in public housing. Here is Chetty's abstract:
The Moving to Opportunity (MTO) experiment offered randomly selected families living in high poverty housing projects housing vouchers to move to lower-poverty neighborhoods. We present new evidence on the impacts of MTO on children’s long-term outcomes using administrative data from tax returns. We find that moving to a lower-poverty neighborhood significantly improves college attendance rates and earnings for children who were young (below age 13) when their families moved. These children also live in better neighborhoods themselves as adults and are less likely to become single parents. The treatment effects are substantial: children whose families take up an experimental voucher to move to a lower-poverty area when they are less than 13 years old have an annual income that is $3,477 (31%) higher on average relative to a mean of $11,270 in the control group in their mid-twenties. In contrast, the same moves have, if anything, negative long-term impacts on children who are more than 13 years old when their families move, perhaps because of disruption effects. The gains from moving fall with the age when children move, consistent with recent evidence that the duration of exposure to a better environment during childhood is a key determinant of an individual’s long-term outcomes. The findings imply that offering families with young children living in high-poverty housing projects vouchers to move to lower-poverty neighborhoods may reduce the intergenerational persistence of poverty and ultimately generate positive returns for taxpayers.
In a second study, Chetty and his colleagues looked at data for millions of families who moved from one county to another. Based on this data, they were able to estimate how much where poor kids grow up affects their income as adults. Here is Chetty's abstract:
We characterize the effects of neighborhoods on children’s earnings and other outcomes in adulthood by studying more than five million families who move across counties in the U.S. Our analysis consists of two parts. In the first part, we present quasi-experimental evidence that neighborhoods affect intergenerational mobility through childhood exposure effects. In particular, the outcomes of children whose families move to a better neighborhood – as measured by the outcomes of children already living there – improve linearly in proportion to the time they spend growing up in that area. We distinguish the causal effects of neighborhoods from confounding factors by comparing the outcomes of siblings within families, studying moves triggered by displacement shocks, and exploiting sharp variation in predicted place effects across birth cohorts, genders, and quantiles. We also document analogous childhood exposure effects for college attendance, teenage birth rates, and marriage rates. In the second part of the paper, we identify the causal effect of growing up in every county in the U.S. by estimating a fixed effects model identified from families who move across counties with children of different ages. We use these estimates to decompose observed intergenerational mobility into a causal and sorting component in each county. For children growing up in families at the 25th percentile of the income distribution, each year of childhood exposure to a one standard deviation (SD) better county increases income in adulthood by 0.5%. Hence, growing up in a one SD better county from birth increases a child’s income by approximately 10%. Low-income children are most likely to succeed in counties that have less concentrated poverty, less income inequality, better schools, a larger share of two-parent families, and lower crime rates. Boys’ outcomes vary more across areas than girls, and boys have especially poor outcomes in highly-segregated areas. In urban areas, better areas have higher house prices, but our analysis uncovers significant variation in neighborhood quality even conditional on prices.
Planet Money has a good laymen's explanation of Chetty's work here:
I continue to find this work exciting. I hope you do, too. I continue to believe that the neighborhood is worthy of further study on how law and policy can facilitate these new findings in the social sciences.
Thursday, August 20, 2015
From an email message that I received earlier this week:
The University of Oregon School of Law invites applications for the position of an assistant, associate, or full professor in environmental law, land use, local government, energy, and other related fields to begin in August 2016. Minimum qualifications include a record of academic excellence, demonstrated success or the potential for success in teaching and scholarship, and a JD from an accredited law school or its equivalent. Successful candidates must have strong interpersonal skills sufficient to inspire and work effectively with diverse groups of students, staff, faculty, alumni, and members of the bar. The University of Oregon is an equal opportunity, affirmative action institution committed to cultural diversity and compliance with the ADA. The University encourages all qualified individuals to apply, and does not discriminate on the basis of any protected status, including veteran and disability status.
Contact: For full consideration, application materials should be submitted by September 1, 2015, although submissions will be accepted until the position is filled. Applicants should submit a letter of interest, a current resume, a FAR form (if applicable) and references to the Stuart Chinn, Associate Professor, Chair, Faculty Appointments Committee, at LawHR@uoregon.edu, or to 1221 University of Oregon School of Law, Eugene OR 97403-1221.
For more information about University of Oregon School of Law, please visit our website at www.law.uoregon.edu.
From the folks at CLiME:
Call for Papers: Local Government Law Works-in-Progress
The Rutgers Law School Center on Law in Metropolitan Equity (CLiME) is proud to host the Third Annual Local Government Law Works-in-Progress Conference.
This scholarship conference will take place November 6-7, 2015 at the S.I. Newhouse Center on Law and Justice at the Rutgers School of Law in downtown Newark, NJ.
Although all topics are welcome, we are particularly interested in showcasing papers that interrogate the meaning and utility of an equity principle in local governance.
This year we hope to attract a few local government-oriented scholars from outside law to attend and comment.
Please register for the conference by October 2, 2015 here.
Participants will have the option of either presenting a full draft or an early work in progress/abstract. Draft papers will be due October 16, 2015.
Questions and submissions should be directed to email@example.com.
The use of land use planning, regulation, and law to discriminate against racial and ethnic minorities and low- and moderate-income people has a long history and many manifestations in the U.S. Among them are race-based zoning, exclusionary zoning, expulsive zoning, gentrification and displacement of residents through redevelopment, unequal provision of infrastructure, and inequities resulting from sprawl.
A significant body of literature on environmental justice is helpful to understanding the underlying issues of distributive, procedural, remedial, and social justice in land use. Environmental justice is about the fair treatment of all races, ethnic groups, and socioeconomic groups in environmental, natural resources, and land use policies and practices. Land use decisions in the United States have placed toxic chemicals, polluting facilities, and industrial land uses near and among low-income people and people of color. They have also produced inequitable patterns of – and access to – environmental goods and community infrastructure, such as parks, transit options, trees, well-functioning water and sewer systems, clean and vibrant riverfront areas and restored streams, affordable housing opportunities, recreational and civic facilities, and the like. At one time, low-income neighborhoods of color were the only places in some metropolitan areas that lacked paved roads and water and sewer services, a pattern that led some courts to find discriminatory intent by municipal officials just on the face of the disparate conditions (e.g., a Yick Wo type of analysis).
There are many environmental-justice books in other disciplines that are well worth reading. Some of my favorites are (alphabetical by author last name):
Spencer Banzhaf, The Political Economy of Environmental Justice (Stanford University Press 2012).
Ana Isabel Baptista, Just Policies? A Multiple Case Study of State Environmental Justice Policies (Proquest 2008).
Bunyan Bryant, ed. Environmental Justice: Issues, Policies, and Solutions (Island Press 1995).
Robert D. Bullard, Dumping in Dixie: Race, Class, and Environmental Quality (Westview Press 1990).
Robert D. Bullard, ed., Confronting Environmental Racism: Voices from the Grassroots (South End Press 1993).
Robert D. Bullard, ed., Unequal Protection: Environmental Justice and Communities of Color (Sierra Club Books 1994).
Robert D. Bullard, ed., The Quest for Environmental Justice: Human Rights and the Politics of Pollution (Sierra Club Books 2005).
Robert D. Bullard, ed., Growing Smarter: Achieving Livable Communities, Environmental Justice, and Regional Equity (MIT Press 2007).
Robert D. Bullard, Glenn S. Johnson, and Angel O. Torres, Sprawl City: Race, Politics, and Planning in Atlanta (Island Press 2000).
Susan L. Cutter, Hazards, Vulnerabilities and Environmental Justice (Routledge 2012).
Daniel Faber, ed., The Struggle for Ecological Democracy: Environmental Justice Movements in the United States (Guilford Press 1998).
Susan S. Fainstein, The Just City (Cornell University Press 2010).
Howard Gillette, Jr., Between Justice and Beauty: Race, Planning, and the Failure of Urban Policy in Washington, D.C. (Johns Hopkins University Press 1995).
Ryan Holifield, Michael Porter, and Gordon Walker, Spaces of Environmental Justice (John Wiley & Sons 2011).
Kathryn M. Mutz, Garcy C. Bryner, and Douglas S. Kenney, Justice and Natural Resources: Concepts, Strategies, and Applications (Island Press 2002).
Laura Pulido, Environmentalism and Economic Justice: Two Chicano Struggles in the Southwest (University of Arizona Press 1996).
Kristin Shrader-Frechette, Environmental Justice : Creating Equity, Reclaiming Democracy: Creating Equity, Reclaiming Democracy (Oxford University Press 2002).
Thomas Sikor, The Justices and Injustices of Ecosystem Services (Routledge/Earthscan 2013).
Gerald R. Visgilio and Diana M. Whitelaw, Our Backyard: A Quest for Environmental Justice (Rowman & Littlefield 2003).
Gordon Walker, Environmental Justice: Concepts, Evidence and Politics (Routledge 2012).
Laura Westra and Bill E. Lawson, eds., Faces of Environmental Racism: Confronting Issues of Global Justice (Rowman & Littlefield 2001).
In addition to the above listed books, there are two books by legal scholars that take broadly interdisciplinary perspectives on environmental justice and would be excellent resources to begin exploring the concept of environmental justice, particularly as it relates to land use. One is by the late Luke W. Cole and Sheila R. Foster, who is co-directs the Urban Law Center at Fordham Law School: From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement (NYU Press 2001). It is a classic in the field.
The other is a book that I wrote for the American Planning Association and its Planning Advisory Service Report series: Fair and Healthy Land Use: Environmental Justice and Planning (APA 2007 – it’s PAS Report No. 549/550). My Fair and Healthy Land Use book explores: what is environmental justice (ch. 1), environmental justice and land use (ch. 2), comprehensive planning and environmental justice, including key environmental justice planning principles (ch. 3), regulatory tools (ch. 4), community participation (ch. 5), the environmental impact assessment as a tool for implementing environmental justice (ch. 6), community infrastructure, housing, redevelopment, and brownfields (ch. 7), and constraints to incorporating environmental justice principles in land-use plans and controls (ch. 8). The book builds on my 1998 article “Planning Milagros: Environmental Justice and Land Use Regulation” in the Denver University Law Review, which included an extensive empirical study of zoning patterns, comparing low-income high-minority census tracts with high-income low-minority census tracts in 7 cities nationwide.
Coming Next: Ecosystem Services
Wednesday, August 19, 2015
Today, the conservative National Review has what I believe is supposed to be a hit piece on Donald Trump and the excessive tax breaks he has received from cities for his real estate projects. See here.
What's funny about this is that conservative groups routinely tout these tax incentives as essential for government to show it is aligned with business, as "public private partnerships" and so on. Now, the effort to dig up dirt on Trump has even conservative columnists acknowledging that the largesse granted to major corporations and billionaires in the name of economic development may be misguided. Would they dare to propose reform?! Here is a pull quote:
Jared Meyer, a fellow at the Manhattan Institute, noted Trump’s long history of courting public-sector largesse. “All Trump is doing is using his political influence and taking advantage of how naïve lawmakers are on economic-development projects to get special treatment that no one else gets,” Meyer says. “I don’t think it’s fair — definitely not. Even in the debate, he bragged about how he gives politicians of all stripes money so that when he comes calling, they’ll do ‘whatever the hell you want them to do.’ It’s a pretty messed-up system when people can use their money and political influence to get a special deal that no one else can.”
Tuesday, August 18, 2015
Individual and collective decisions about the use of land are fundamentally normative decisions, whether consciously made on the basis of a set of ethics and norms or reached through governance systems with implicit, imbedded normative underpinnings. What do ethicists have to say about land use that could be interesting to land use legal scholars? Quite a lot, it turns out.
If you have time to read only one book on the topic, I’d highly recommend Timothy Beatley, Ethical Land Use: Principles of Policy and Planning (Johns Hopkins University Press 1994). When I taught a land use seminar at Chapman University School of Law, I assigned this 300-page paperback book that covers land use from a diverse range of ethical perspectives. The outline of the book is as follows:
Part I: Ethical Framework
1. Land-Use Policy and Ethical Choices
2. The Nature of Ethical Discourse about Land Use
Part II: Sets of Land-Use Ethics and Obligations
3. Utilitarian and Market Perspectives on Land Use
4. Culpability and the Prevention of Land-Use Harms
5. Land-Use Rights
6. Distributive Obligations in Land Use
7. Ethical Duties to the Environment
8. Land-Use Obligations to Future Generations
Part III: Ethics and Individual Liberties
9. Paternalism and Voluntary Risk-taking
10. Expectations and Promises in Land-Use Policy
11. Private Property, Land-Use Profits, and the Takings Issue
Part IV: Ethics, Community, and Politics
12. Defining Life-Style and Community Character
13. Duties beyond Borders: Interjurisdictional Land-Use Ethics
14. The Ethics of Land-Use Politics
Part V: Conclusions
15. Principles of Ethical Land Use
Of course, many of you were probably expecting me to recommend Aldo Leopold’s writings on his land ethic, which are wonderful and well worth reading. Leopold urged a holistic view of the land community as encompassing both nature and humans, and a conservation ethic in how land is used and managed. The classic is Aldo Leopold, A Sand County Almanac And Sketches Here and There (Oxford University Press 1949), but other collections of his writings are also worth reading, including For the Health of the Land (edited by J. Baird Callicott and Eric T. Freyfogle; Island Press 1999), and The River of the Mother of God and Other Essays by Aldo Leopold (edited by Susan L. Flader and J. Baird Callicott; University of Wisconsin Press 1991). Julianne Lutz Newton wrote an exciting biography of Leopold: Aldo Leopold’s Odyssey: Rediscovering the Author of A Sand County Almanac (Island Press 2006). Writings by Wendell Berry and Wallace Stegner, discussed in a previous blog post, also articulate a land and environmental conservation ethic.
As many of you know, legal scholar Eric Freyfogle at the University of Illinois has written a number of highly important interdisciplinary books that integrate land ethics (including the writings of Leopold, Berry, historian Donald Worster, and others) with legal issues. My favorite remains Bounded People, Boundless Land: Envisioning a New Land Ethic (Island Press 1998), which is unusually articulate, inspiring, and engaging. Eric has commented on several occasions that he considers some of his later works his best writing, and all are certainly excellent and well worth reading. Among them are: The Land We Share: Private Property and the Common Good (Island Press 2003), Why Conservation Is Failing and How It Can Regain Ground (Yale University Press 2006), and On Private Property: Finding Common Ground on the Ownership of Land (Beacon Press 2007). Still, I stick by my special regard for his Bounded People, Boundless Land book.
J. Baird Callicott is a philosopher who has built on Leopold and yet gone beyond Leopold’s perspective with a strongly non-anthropocentric viewpoint. His books are well worth reading, including In Defense of the Land Ethic (State University of New York Press 1989) and Beyond the Land Ethic: More Essays in Environmental Philosophy (State University of New York Press 1999). Three other environmental ethics classics with relevance to land use are Holmes Rolston III, Environmental Ethics: Duties to and Values in the Natural World (Temple University Press 1988), Bryan G. Norton, Toward Unity among Environmentalists (Oxford University Press 1991), and Laura Westra, An Environmental Proposal for Ethics: The Principle of Integrity (Rowman & Littlefield 1994).
Despite the trenchant critique and normative guidance found in many writings on land ethics and conservation philosophies, the reality is that the land use system in the United States is characterized by pragmatism and ethical pluralisms at best. I discussed this point in my article The Structure of the Land Use Regulatory System in the United States, 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN: http://ssrn.com/abstract=1020305. Nonetheless, important ethical imperatives can be found in pragmatic perspectives on land use, as explored in an outstanding book by Ben A. Minteer: The Landscape of Reform: Civic Pragmatism and Environmental Thought in America (MIT Press 2006). Minteer examines the ideas of four major land-and-environment thinkers and reformers in the American 20th Century – Liberty Hyde Bailey, Lewis Mumford, Benton MacKaye, and Aldo Leopold – to illuminate an environmental pragmatism focused more on civic and policy reform than on picking sides in the anthropocentric/land-use versus ecocentric/environmental-preservation debates. I highly recommend this informative and well-written book.
By now (if you made it this far!), you’ve probably noticed that most of these writings involve environmental ethics and don’t really delve too much into social justice, distributive justice, procedural justice, and the like. I will tackle some of those issues, albeit mostly at the land use-environment intersection, in my next post on interdisciplinary readings in environmental justice and land use.
Coming Next: Environmental Justice and Land Use
Sunday, August 16, 2015
I know this matters almost exclusively as a matter of personal biography, but I have to share: It turns out that Fox is about to start a sitcom series, The Grinder, starring Fred Savage (The Wonder Years) and Rob Lowe (80's heart throb) about.......wait for it........lawyers.......in Boise........Idaho! What?!
When I moved to Boise after 15 years living in New York City and San Francisco, it seemed like I was moving to the end of the Earth. But Boise is a lovely place, I've come to learn, and it seems Hollywood has found out, too. Now, Hollywood has come calling and, perhaps, there is a cameo waiting for the law school--or yours truly?--in the coming months. A Hollywood cameo for a land use prof...now that would be something!
Surely, you would watch, no?
Saturday, August 15, 2015
Boulder-White Clouds shows there are still bi-partisan solutions available to land use and environmental issues
The preservation of Idaho's Boulder-White Clouds as wilderness this month ranks as one of the great un-reported land use and environmental stories of the year. Most of the major newspapers have covered the designation in passing. This is remarkable, in my mind, for a very important reason: the designation was a true bipartisan effort, over decades, in which today's very conservative Idaho congressional delegation aligned behind the proposed wilderness designation that a Democratic president could sign. Granted, there had been concern that Obama might declare the area a national monument, but that should not belie the fact that a bipartisan solution was reached in Washington on an environmental issue in today's climate. Such a result deserves to be celebrated. Below is an excerpt from PBS, which is the best coverage I found outside of Idaho, detailing the bi-partisan effort.
Friday, August 14, 2015
Initially, I’d like to thank Stephen Miller and Jessie Owley for the privilege of allowing me to be a guest blogger. I hope that my posts will be both informative and thought provoking.
Thanks, Itzchak Kornfeld
In this, my first post, I will address a real property issue that is pitting the Government of Israel against its Bedouin minority.
280,000 Bedouin live in Israel. Of these, 90,000 live in the Negev Desert in the country’s south. See Map Below. This community lives in the general area of Be’er Sheba, which we in Israel consider the capital of the Negev. The government is seeking to evict the Negev Bedouin from their ancestral lands. Its reason: the State of Israel considers them to be living in unauthorized villages or locations and accordingly sees them as squatters. I will address why the government has taken on this position in a subsequent post. Today I will introduce the history of the Bedouin and an initial discussion of the Land Law of 1949.
- Full disclosure, I work and have worked with the Bedouin and against the government.
TheZin Wilderness in the Middle Negev, Israel
Juniper Tree in the Negev adjacent to the Large Crater (of Makhtesh HaGadol in Hebrew)
One fact that is likely well known but may not be fully acknowledged is that Europeans, in almost every venue that they’ve settled, e.g., the U.S. and Canada, have taken by force lands that belonged to indigenous populations. Indeed, examples abound across the face of the planet, e.g., American Indians, the First Nations of Canada, the Bedouin of the Middle East, the Berbers of North Africa’s Maghreb, and the Walmatjarra of Australia, among others. Prior to being dispossessed and placed on reservations of one sort or another, these peoples flourished and were one with nature.
Of course, being one with nature is not one of the virtues of most European colonialists and their progeny. They conquer, reclaim and put land to “beneficial uses”. In this vein, private property rights theorists would argue that the bundle of rights, regardless of whether the land was appropriated by force, must be seen as a feature of an economic good. This economic paradigm requires use of the land; income generation from the land; the right to transfer the asset; and the right to enforce their property rights. But, how are aboriginal peoples supposed to gain the bundle of rights if they are dispossessed from their ancestral lands? This situation of course sets up a conflict between the two sides.
Indeed, the Bedouins in the Negev are in conflict with the European-based government of Israel. First, who are the Bedouin? They are an Arabic speaking seminomadic group that is descended from nomads who for at least thousand years inhabited the deserts of the Middle East, mainly from Syria in the north to North Africa in the south, and for our purposes, resided in Israel pre -1948, the date of the State’s founding.
The Bedouin also continue to reside within the boundaries of the State of Israel, and unlike the Palestinian or Arabs who also live in Israel proper the Bedouin serve in Israel’s military (the “IDF”). Service in the military is very important for Jewish Israelis however, the Bedouin do not receive the benefits that Jewish soldiers receive upon being released from their term of service.
Bedouin Man wearing IDF Jacket
Notably, the Bedouin have been fighting for the right to the lands that they and their ancestors occupied since the founding of the State of Israel. Moreover, they cannot undertake their semi-nomadic lifestyle since the borders of Egypt, Jordan, Lebanon and Syria are closed to them as a consequence of their Israeli citizenship. The Negev Bedouin have thus been forced to give up their thousand year legacy of being nomads.
Israel’s Land Policies
Since its founding in 1948, the Israeli government has held title to all but 7 percent of land within the country’s borders. The latter is held by deed, generally predating the formation of the Government of Israel. The government’s real property interests are transferred to it from the independent Jewish National Fund (“JNF”). The JNF was established in Basel, Switzerland, in 1901, solely to purchase land from Arabs, the Ottoman Turks, Jews, and other land holders, within the bounds of what today is Israel.
In enacting the Israel Land Law of 1969, as amended, the Knesset (Parliament) sought to eliminate the majority of the Ottoman Turkish law of 1274. That, in fact, did not occur. However, Knesset members thought long and hard about the adoption of the British common law property system, if for no other reason, because it was extant and had been working for some 30 years. Moreover, Hebraic or Jewish property law, as enunciated in the Bible and the Talmud, was also engrafted onto the 1969 law. Thus today, real property law in Israel is a combination of the three. That legal sausage is now the law of the land.
A Twist in the Law
A personal story may be of interest: In 1937, my father’s aunt purchased a parcel of property in Ramat HaSharon, an upper income city, north of Tel Aviv, where today most of the IDF’s generals reside. She was one of 18 parcel holders. When Aunt Sara passed away my father inherited the plot, and subsequent to his death, I inherited it. The other owners and I sought to develop all 18 parcels (4.5 acres), however, we cannot due to an artifact of Ottoman law. That legal relic states that if A is growing any fruits or vegetable on B’s land, as a lessee, the lease cannot be terminated by B until A decides not to grow crops. In our situation, my father’s aunt Sara purchased the property following A’s agricultural undertaking. He grew tomatoes, and his heirs continue to do so. Thus, three generations of my family are legally bound not to evict the farmers from our land. One bright spot is that we as owners we do not have to pay real estate taxes, s long as the property remains agricultural.
CivicSpark, a Governor's Initiative Americorps program, seeks applicants to assist California's local governments with sustainability measures
I'm posting this primarily because I thought it was an interesting approach to capacity building on sustainability for local governments. Could also be a good thing to do between college and law school...
Take Action on Climate Change with CivicSpark!
CivicSpark, a Governor's Initiative AmeriCorps program dedicated to building capacity for local governments to address climate change, is now recruiting members for the 2015-16 service year. Through CivicSpark, recent college graduates gain valuable work experience while acquiring technical skill-sets, building their professional network, and creating a meaningful and lasting impact.
Each year throughout California, 48 CivicSpark members complete research, planning or implementation projects that provide local government agencies with the support they need in their climate and sustainability initiatives. Members support nearly 100 cities, schools and other public agencies on projects focused on sustainable transportation, energy efficiency, climate action planning, adaptation, drought response and more.
Member applications are accepted on a rolling basis until the start of the program in October. Interested graduates and young professionals are encouraged to learn more and apply at www.civicspark.lgc.org.
Thursday, August 13, 2015
When I teach State & Local Government Law, I have students read Sheff v. O'Neill, 238 Conn. 1 (1996), a legendary case in which the Connecticut Supreme Court relied upon state constitutional provisions to require what is effectively de-segregation of the State's schools. ("We therefore hold that, textually, article eighth, section 1, as informed by article first, section 20, requires the legislature to take affirmative responsibility to remedy segregation in our public schools, regardless of whether that segregation has occurred de jure or de facto.").
This past week, the NPR radio show The American Life, did an entire hour-long program on what has happened in Hartford schools in the last twenty years trying to implement Sheff. It is a fascinating story and well worth a listen. Listen here.
Place-based perspectives on land use are particularly important to geographers and some kinds of planners. However, they are also important to lawyers and legal scholars.
For example, the Klein, Cheever, and Birdsong natural resources law casebook takes a place-based approach, and Charles Wilkinson has used place-based ethics to critique land use, water, and environmental law doctrines that facilitate exploitation of the environment and natural resources in the American West (e.g., Crossing the Next Meridian: Land, Water, and the Future of the West (Island Press 1992) and The Eagle Bird: Mapping a New West (Vintage Books 1992)). Meanwhile, Sheryll Cashin has analyzed racial and socio-economic geography to show that place matters to educational, economic, and social opportunities and that disparate places produce disparate outcomes: Place Not Race: A New Vision of Opportunity in America (Beacon Press 2014). I have analyzed the land use regulatory system in the United States as having a mediating system structure; it defines and regulates relationships between the public and places, with their various ecological, physical, socio-cultural, and economic contexts (Arnold, "The Structure of the Land Use Regulatory System in the United States," 22 Journal of Land Use and Environmental Law 441 (2007), available at SSRN: http://ssrn.com/abstract=1020305).
Also, take a look at how Justice Kennedy began his opinion in the Del Monte Dunes takings case by describing the physical, socio-political, and ecological conditions of the property in question and noting that it was hardly an environmentally pristine parcel. You can discern how the opinion is going to go just from his first few paragraphs about the place in question. In contrast, the ecologically sensitive conditions of the coastal wetlands property in Palazzolo v. Rhode Island matched an outcome of no-takings in that case. Place matters.
Several books from non-law disciplines offer interesting insights about the role of place in land use governance. A classic is Rutherford H. Platt, Land Use and Society: Geography, Law, and Public Policy, Revised Edition (Island Press 2004). While Platt’s hierarchy of the legal system as applied to land use is inaccurately simplistic (think secondary school civics, without sufficient attention to dynamic federalism or jurisdictional gaps and complexities), his work on the relationships among places, society, and institutions is quite good.
Timothy Beatley and the late Kristy Manning published one of my all-time favorite books about the inter-relationships between land use and the environment: The Ecology of Place: Planning for Environment, Economy and Community (Island Press 1997). If you work at the intersection of land use and the environment and haven’t read everything that University of Virginia sustainable planning professor Tim Beatley has written, you really need to.
Robert J. Mason, a geography, urban studies, and environmental studies professor, has a book, Collaborative Land Use Management: The Quieter Revolution in Place-Based Planning (Rowman & Littlefield 2008), which emphasizes how shared interests in special places have led to collaborative planning and management that is sometimes called “devolved” governance (although from the normally localist perspective of most land use planning and regulation, collaborative landscape or ecosystem planning is not especially “devolved”).
Gene Bunnell also focuses on place-based planning as a type of place-making or place-altering process in his book Making Places Special: Stories of Real Places Made Better by Planning (American Planning Association 2002). Major case studies focus on Chattanooga, Providence, Charleston, Duluth, and San Diego, with minor case studies in the Appendix and on a separate CD-ROM that also include Madison, WI, Wichita, KS, Westminster, CO, and others.
For those of you who are interested in: a) land use issues in the American West, or b) a very good method for analyzing the relationships between land-use patterns and geography, you should read William B. Travis, New Geographies of the American West: Land Use and the Changing Patterns of Place (Island Press 2007). The American West is a common focus of place-based writing on land use and the environment. Wallace Stegner is a must-read (books include Where the Bluebird Sings to the Lemonade Springs: Living and Writing in the West; The Sound of Mountain Water: The Changing American West; Marking the Sparrow’s Fall: The Making of the American West; Beyond the Hundredth Meridian: John Wesley Powell and the Second Opening of the West; and American Places (with Page Stegner). However, not all place-based writing is western in focus. Stegner influenced Wendell Berry to write about the special cultural-environmental characteristics of his home places in Kentucky, not far from where I live. If you haven’t read Berry’s writings, including his critiques of our disconnection from the land, I’d encourage you to pick up what you can. Of course, Stegner and Berry lead us to our next topic – land ethics.
Coming Next: Land Ethics
Wednesday, August 12, 2015
Another school year is upon us, and that means the return of monthly guest bloggers at Land Use Prof Blog! This academic year's first guest blogger will be Itzchak Kornfeld, who will blog for us throughout August (and, should he choose to do so, through September, as well). Here is Itzchak's bio:
Itzchak is the Giordano Fellow in Transboundary Environmental Disputes at Hebrew University in Jerusalem. He earned a J.D. from Tulane, an LL.M. from Georgetown and a Ph.D./SJD from the Hebrew University. His research focuses on international environmental law with a concentration on issues related to water, land, and natural resources. He practiced law in Louisiana and Pennsylvania and New Jersey. He has taught international environmental law, comparative property law (common law vs. civil law), international water law, coastal law, law of the sea, torts to land, oil & gas law, and public international law, among other subjects. He blogs at itzchakkornfeld.com and his research can be found at http://ssrn.com/author=964273. Itzchak can be contacted via e-mail at kornfeld.itzchak <at> mail.huji.ac.il.
I've been a little remiss on postings this summer, and I thought I'd mention at least one reason: namely, the University of Idaho College of Law's Boise campus has been moving into its new digs on the State's Capitol Mall. Our new home here will be the WPA-era Ada County Courthouse, a building which has been an important landmark in Idaho's legal history for nearly 80 years. The newly refurbished building will house the Boise campus of the College of Law, as well as the Idaho State Law Library, and the Idaho Supreme Court's Institute for Advanced Judicial Education.
The new campus is directly across the street from the Capitol building, as witnessed from this view outside my office window, which also includes a view of St. Michael's Episcopal, the oldest church in the State, (and whose dean is also on the Planning and Zoning Commission with me here in Boise):
On the other side of the new Boise campus, is the Idaho Supreme Court building, and most major State agencies, as well as many Federal agency field offices, are located within a few minutes walk of the new campus. I am very much looking forward to welcoming many of you to the new campus in the years ahead. When you stop by, be sure to notice the power supply structure painted with a mural of the building under construction in the 1930s...
More pretty pictures to come, as well as a lot more Land Use Prof Blog, as I settle into the new digs and back into the academic year.